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ELCDismissed· [2025] KEELC 4619 (KLR)

Lumwe & another v Tsuma & 2 others (Environment & Land Case 30 of 2019) [2025] KEELC 4619 (KLR)

Environment and Land Court
27 March 2025
EME. K. Makori
2,785 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kilifi family lost their claim to 68 acres because they couldn't prove their land was held in customary trust—the court said they should have participated in the original land adjudication.

What this practically means

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Executive summary

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The Plaintiffs sued the Defendants, their cousins and registered absolute owners of Mwapula/Magogoni/690 (approx. 68.22 acres in Kilifi County), seeking a declaration that the Defendants hold the land in trust for them under a customary trust, an order of inhibition against dealings without their written consent, costs and interest. Their case was that both families descend from the common patriarch Tuji Tuma, that the land was family land cultivated jointly, and that during the adjudication exercise only the Defendants' family was registered because no representative of the Plaintiffs' family units was present. The Defendants filed a defence denying any trust but did not testify. The court framed the question whether the Plaintiffs proved a customary trust on a balance of probabilities and whether the orders sought were appropriate. Applying the Supreme Court's five-element test in Isaack Kiebia M'Inanga, and sections 24-28 and 107(1) of the Land Registration Act read with the repealed Registered Land Act, the court found the claim failed: the Chief's record showed the land was family land, not clan land, and the two families were distinct, having settled from Ribe. Critically, no evidence showed the Plaintiffs' patriarch had an adjudicable interest, why he did not attend the adjudication, or that he authorised registration in trust. The court emphasized that customary trust claims must be correlated with the adjudication process, and that grievances from adjudication lie in judicial review. The suit was dismissed with costs.

Key legal issues

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01

Whether the Plaintiffs proved a customary trust over Mwapula/Magogoni/690

Holding

They did not; no evidence showed their patriarch had an interest adjudicable or that he authorised the Defendants' registration, and the Chief's findings showed the families were distinct and the land was not clan land.

Reasoning

The court applied the five-element test in Isaack Kiebia M'Inanga. Although the Plaintiffs share common ancestry with the Defendants, the Chief's note showed this was family land, not clan land, and that the families were distinct and settled from Ribe. No evidence showed the Plaintiffs' patriarch attempted to participate in the adjudication, why he was absent, or that he authorised registration in trust. Failure to engage with the adjudication process undermined the trust claim.

p. 5
02

Statutory framework for customary trusts on registered land

Holding

Customary trust subsists as an overriding interest without being noted on the register, under both the repealed Registered Land Act (s.30(g)) and the Land Registration Act (s.28).

Reasoning

The land was first registered on 20 June 2011 under the Registered Land Act, whose sections 27, 28 and 30(g) subjected registration to overriding interests including customary trusts. Those provisions are mirrored by sections 24, 25, 26 and 28 of the Land Registration Act, and section 107(1) preserves rights acquired before commencement.

p. 3

Legal principles established

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  • A customary trust is an overriding interest under sections 28 and 24-26 of the Land Registration Act if proved to subsist.
  • A customary trust claim must be correlated with the adjudication process; a claimant must show participation or interest in that process.
  • Grievances emanating from the adjudication process are properly addressed via judicial review.

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs

Authorities

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Legislation

  • Registered Land Act (repealed)Sections 27, 28, 30(g)
  • Land Registration Act No. 3 of 2012Sections 24, 25, 26, 28, 28(b), 107(1)
  • Land Adjudication ActNot specified

Cases cited (3)

  • Isaack Kiebia M'Inanga v Isaack M'Lintari & another
    [2018] eKLR
  • Jimmy Parnyumbe Luka & 3 others v Chairman Land Adjudication Committee Leshuta Land Adjudication Section & 6 others
    [2021] KEELC 637 (KLR)
  • Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others
    (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land within Kilifi County

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lumwe & another v Tsuma & 2 others (Environment & Land Case 30 of 2019) [2025] KEELC 4619 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4619/eng@2025-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.